Citation Nr: 1025132
Decision Date: 07/06/10 Archive Date: 07/19/10
DOCKET NO. 07-15 549 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office Center
in Wichita, Kansas
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD).
REPRESENTATION
Veteran represented by: Richard J. Mahlin, Attorney
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Associate Counsel
INTRODUCTION
The Veteran had active duty for training (ACDUTRA) in the Army
National Guard from November 1976 to July 1977.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) from a December 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska,
that denied the benefit sought on appeal. The RO in Wichita,
Kansas, is currently handling the matter.
In October 2008, the Board remanded the matter for additional
development. That development having been completed, the claim
has been returned to the Board and is now ready for appellate
disposition.
FINDING OF FACT
The Veteran's current COPD is not shown to be causally or
etiologically related to active service.
CONCLUSION OF LAW
Service connection for COPD is not established. 38 U.S.C.A. §§
1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran is seeking service connection for COPD.
To establish direct service connection, the record must contain:
(1) medical evidence of a current disability; (2) medical
evidence, or in certain circumstances, lay testimony, of in-
service incurrence or aggravation of an injury or disease; and,
(3) medical evidence of a nexus between the current disability
and the in-service disease or injury. In other words,
entitlement to service connection for a particular disability
requires evidence of the existence of a current disability and
evidence that the disability resulted from a disease or injury
incurred in or aggravated during service. 38 U.S.C.A. § 1131.
Here, a current diagnosis has been established. On VA
examination in March 2009 the Veteran was diagnosed with
COPD/Pulmonary emphysema.
However, the Veteran's service treatment records (STRs) are
silent for documentation of the disorder. The records reveal no
complaints or treatment related to the Veteran's COPD, and her
separation examination was normal in this regard.
The Veteran asserts that her COPD is a result of breathing fumes
from jet propulsion fuel, exhaust from helicopters, and being
exposed to exhaust fumes of gas chambers. The Veteran's DD-214
reports that the Veteran was an air traffic radar controller.
However, the only nexus opinion of record on the issue of service
connection is negative. On VA examination in March 2009, the
examiner found that the Veteran's "COPD is less likely as not
caused by or result of exposure to riot/tear gas in gas
chamber." The examiner stated that "[h]er exposure to the gas
chamber . . . was at most minimal and would only cause acute and
transient symptoms, no permanent lung damage, [and exposure to
the exhaust fumes of gas chambers is] not known to be a risk
factor for COPD." The examiner also determined that the
Veteran's "COPD is less likely as not caused by claimed
exhaust/fuel fumes." The examiner stated that "[t]hese
environmental factors, according to literature, are noted as 'may
also have effect' on pulmonary function or cause COPD." However,
the examiner noted that these environmental factors " . . .
would have little if any effect on pulmonary function compared to
32 years at 2 packs daily of cigarette smoking." There is no
positive evidence to the contrary of this opinion in the claims
file. As such, service connection is not warranted.
In reaching this decision the Board has considered the Veteran's
arguments in support of her assertions that her COPD is related
to service. However, the resolution of an issue that involves
medical knowledge, such as the diagnosis of a disorder and the
determination of medical etiology, requires professional
evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). It is true that the Veteran's lay statements may be
competent to support a claim for service connection by supporting
the occurrence of lay- observable events or the presence of the
disorder or symptoms of the disorder subject to lay observation.
See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007);
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing
lay evidence as potentially competent to support presence of
disorder even where not corroborated by contemporaneous medical
evidence); Charles v. Principi, 16 Vet. App. 370, 374 (2002)
("ringing in the ears is capable of lay observation"). However,
COPD requires specialized training for a determination as to
diagnosis and causation, and is therefore not susceptible of lay
opinions on etiology.
The Board notes that under the provisions of 38 U.S.C.A. §
5107(b), the benefit of the doubt is to be resolved in the
claimant's favor in cases where there is an approximate balance
of positive and negative evidence in regard to a material issue.
The preponderance of the evidence, however, is against the
Veteran's claim and that doctrine is not applicable. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of
entitlement to service connection for COPD is not warranted.
Notice and Assistance
Under applicable law, VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2009).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi,
16 Vet. App. 183 (2002). Proper notice from VA must inform the
claimant of any information and evidence not of record: (1) that
is necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and (4)
must ask the claimant to provide any evidence in her or his
possession that pertains to the claim in accordance with 38
C.F.R. § 3.159(b)(1). This notice must be provided prior to an
initial unfavorable decision on a claim by the agency of original
jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board finds that the content requirements of a duty to assist
notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b). A letter from the RO dated in August 2006
provided the Veteran with an explanation of the type of evidence
necessary to substantiate her claim, as well as an explanation of
what evidence was to be provided by her and what evidence the VA
would attempt to obtain on her behalf. The letter also provided
the Veteran with information concerning the evaluation and
effective date that could be assigned should service connection
be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473
(2006). VA has no outstanding duty to inform the Veteran that
any additional information or evidence is needed.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of STRs and pertinent treatment records and providing
an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159.
Here, the Board finds that all relevant facts have been properly
developed, and that all evidence necessary for equitable
resolution of the issue has been obtained. Her STRs and post-
service treatment records have been obtained. The Board does not
have notice of any additional relevant evidence which is
available but has not been obtained. She has been afforded a VA
examination. For the foregoing reasons, the Board concludes that
all reasonable efforts were made by the VA to obtain evidence
necessary to substantiate the Veteran's claim. Therefore, no
further assistance to the Veteran with the development of
evidence is required.
ORDER
The claim for service connection for COPD is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs